Toston v. State
| Decision Date | 29 December 2011 |
| Docket Number | No. 58853.,58853. |
| Citation | 127 Nev. Adv. Op. 87,267 P.3d 795 |
| Parties | Anthony TOSTON, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
OPINION TEXT STARTS HERE
Anthony Toston, Indian Springs, in Proper Person.
Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, and Steven S. Owens, Chief Deputy District Attorney, Clark County, for Respondent.
Before DOUGLAS, HARDESTY and PARRAGUIRRE, JJ.
Appellant Anthony Toston pleaded guilty to first-degree kidnapping and robbery. In a post-conviction petition for a writ of habeas corpus challenging the judgment of conviction he alleged that his trial counsel provided ineffective assistance by misadvising him about the right to appeal from a judgment of conviction based on a guilty plea and failing to file an appeal when Toston expressed dissatisfaction at the sentencing hearing.
In this appeal from the district court's order denying the habeas petition, we address trial counsel's duty to provide information about the right to a direct appeal and duty to file an appeal when a conviction stems from a guilty plea. Although trial counsel is not constitutionally required to inform a defendant of the right to appeal when the conviction stems from a guilty plea absent the defendant's inquiry about the right to appeal or the existence of a direct appeal claim that has a reasonable likelihood of success, we clarify that trial counsel has a duty not to provide misinformation about the availability of a direct appeal. Accordingly, we hold that counsel's affirmative misinformation about the right to appeal from a judgment of conviction based on a guilty plea may fall below an objective standard of reasonableness and therefore be deficient. We further take this opportunity to clarify the circumstances in which a defendant has expressed dissatisfaction with his conviction such that trial counsel is obligated to file a direct appeal. We hold that trial counsel has a duty to file an appeal when, based on the totality of the circumstances, the defendant reasonably demonstrated to counsel that he was interested in challenging his conviction or sentence. Because Toston's petition alleged that trial counsel misinformed him regarding his right to appeal and that he had expressed dissatisfaction with the conviction and sentence such that counsel reasonably should have filed an appeal, and those allegations are not belied by the record and would entitle Toston to relief if true, we reverse the district court's order as to this claim of ineffective assistance of counsel and remand for an evidentiary hearing. We affirm the district court's order in all other respects.1
Toston was originally charged with two counts of first-degree kidnapping with the use of a deadly weapon, two counts of robbery with the use of a deadly weapon, and one count of conspiracy to commit robbery. Toston entered a guilty plea to one count each of first-degree kidnapping and robbery in exchange for the dismissal of the remaining counts and the dismissal of an additional case. In addition, the parties stipulated to Toston receiving a sentence of 5 to 15 years for kidnapping and a consecutive sentence of 2 to 5 years for robbery. Toston was informed in the written guilty plea agreement of the potential maximum penalties he faced by entry of his guilty plea, as well as his limited right to appeal the conviction. Additionally, Toston was informed in the written guilty plea agreement that the district court was not obligated to accept the recommended sentence.
On the date for sentencing, Toston asked the district court to allow him to withdraw his guilty plea, and Toston later asked to dismiss his appointed counsel. Both of these oral motions were made in proper person. Toston's trial counsel informed the district court that he felt that there was no basis for the request to withdraw the guilty plea. Lacking a transcript of the plea canvass and out of a sense of caution, the district court continued the matter for the transcript to be prepared and reviewed.
When the matter next came before the court, the district court denied the motion to withdraw the plea and the motion to dismiss counsel. The State argued for a greater sentence than that stipulated to because Toston had committed a violent crime against his cellmate while awaiting sentencing in this case. Although Toston and his trial counsel both argued that the district court should impose the sentence that the parties stipulated to receiving in the plea negotiations, the district court imposed a sentence of life with the possibility of parole after 5 years for kidnapping and a consecutive sentence of 2 to 10 years for robbery.
Toston continued to discuss his case with the district court after the imposition of sentence, explaining the incident with his cellmate and referring to errors in his criminal record set forth in documents he labeled “discovery.” The district court maintained that it felt the sentence imposed was appropriate given Toston's criminal history and the violence committed in the instant case. The district court, observing Toston's distress, made the following comments to Toston and his trial counsel:
No direct appeal was taken. No post-conviction motions were filed on Toston's behalf by counsel. Toston filed a timely post-conviction petition for a writ of habeas corpus in proper person. The district court denied the petition without an evidentiary hearing.
Toston's petition included a claim that he was deprived of his right to a direct appeal due to ineffective assistance of counsel. In particular, Toston alleged that trial counsel misadvised him about the right to appeal from a judgment based on a guilty plea and failed to file an appeal even though he had observed Toston's dissatisfaction at the sentencing hearing.
To prove ineffective assistance of counsel, a petitioner must demonstrate that counsel's performance was deficient in that it fell below an objective standard of reasonableness and resulting prejudice such that there is a reasonable probability that, but for counsel's errors, the outcome of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Warden v. Lyons, 100 Nev. 430, 432–33, 683 P.2d 504, 505 (1984) (). Generally, both components of the inquiry must be shown, Strickland, 466 U.S. at 697, 104 S.Ct. 2052, but in some instances, such as when the petitioner has been deprived of the right to appeal due to counsel's deficient performance, the second component (prejudice) may be presumed, Lozada v. State, 110 Nev. 349, 357, 871 P.2d 944, 949 (1994). The petitioner must demonstrate the underlying facts by a preponderance of the evidence, Means v. State, 120 Nev. 1001, 1012, 103 P.3d 25, 33 (2004), and he is entitled to an evidentiary hearing if he raises claims supported by sufficient factual allegations that, if true, would entitle him to relief and that are not belied by the record, Hargrove v. State, 100 Nev. 498, 502–03, 686 P.2d 222, 225 (1984).
The specific claim here is that Toston was deprived of his right to a direct appeal due to ineffective assistance of counsel. The deficiency prong of such a claim has two separate, but related, components: counsel's duty to inform and consult with the client regarding the right to appeal and counsel's duty to file an appeal.
Duty to accurately inform and consult about the right to appeal
We have held that trial counsel does not have a constitutional duty to always inform his client of, or consult with his client about, the right to a direct appeal when the client has been convicted pursuant to a guilty plea.2 Thomas v. State, 115 Nev. 148, 150, 979 P.2d 222, 223 (1999); see also Roe v. Flores–Ortega, 528 U.S. 470, 479–80, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). That duty arises in the guilty-plea context only when the defendant inquires about the right to appeal or in circumstances where the defendant may benefit from receiving advice about the right to a direct appeal, “such as the existence of a direct appeal claim that has reasonable likelihood of success.” Thomas, 115 Nev. at 150, 979 P.2d at 223. In those limited circumstances, trial counsel has a constitutional duty to inform a client who has pleaded guilty about a direct appeal and consult with the client about the procedures for and advantages and disadvantages of an appeal, and counsel's failure to do so is deficient performance for purposes of proving an ineffective assistance of counsel claim. Flores–Ortega, 528 U.S. at 477–81, 120 S.Ct. 1029; Thomas, 115 Nev. at 150, 979 P.2d at 223; Davis v. State, 115 Nev. 17, 20, 974 P.2d 658, 659–60 (1999).
In this case, Toston did not claim that counsel had a duty to inform him of his right to appeal and failed to do so; instead, he indicated that counsel misinformed him about his appeal rights. Specifically, Toston claimed that trial counsel informed him that he was not permitted to file a direct appeal because his conviction stemmed from a guilty plea. That information is not correct: a defendant who has pleaded guilty has a right to appeal from the judgment of conviction, NRS 177.015(...
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